Much time and energy was wasted this year on failed legislation (HB319/SB680; HB213/SB 1890). The only thing homeowners received from the Florida Legislature was the shaft, introduced by term-limited Senator Bennett, a developer, and House sponsor Rep. Artiles. This law, which if not vetoed by Governor Scott, will deprive homeowners of implied warranty of fitness and merchantability or habitability associated with the construction and sale of a new home with respect to items directly supporting the home. The legislation provides that no common law implied warranties will exist for “off site improvements” including roads, driveways, sidewalks, drainage area utilities, or any other improvement not located on or under the lot on which a new home is constructed.

Rather than dwell on the legislature’s failures, I’d like to focus my blog time on sharing with the readers a better understanding of how the alternate dispute mechanism works in the condominium setting and how a variety of unusual arbitration decisions were decided.

When considering alternative dispute mechanisms – mediation and arbitration – it is important to understand that mediation is optional (non-mandatory) and arbitration applies whenever there is a disagreement between two or more parties that involve:

(a) the authority of the board of directors, under the Condominium Act or condominium documents to:

1. require any owner to take any action, or not to take any action, involving the owner’s unit or the appurtenances thereto;

2. alter or add to a common area or element

(b) the failure of a governing body, when required by the Act or condominium documents, to:

1. properly conduct elections;

2. give adequate notice of meetings or other actions;

3. properly conduct meetings;

4. allow inspection of books and records

Expressly excepted from the requirement of non-binding arbitration are any disagreements that primarily involve:

1. title to any unit or common element;

2. the interpretation or enforcement of any warranty;

3. the levy of a fee or assessment;

4. the collection of an assessment;

5. the eviction or the removal of a tenant from a unit;

6. alleged breaches of fiduciary duty by one or more directors;

7. claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.

It is also important to note that prior to a board taking any action against a unit owner for an alleged violation of the Act or documents, the board must give the unit owner:

1. advance written notice of the specific nature of the dispute;

2. a demand for relief and a reasonable opportunity to comply or to provide the relief; and

3. notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the dispute.

Taking into consideration the above rule guidelines, what do you feel would be the arbitration result of the following real case? Next week’s blog will advise what an arbitrator held and provide facts of another case.

FACTS: A disgruntled owner filed a petition seeking a new election, alleging irregularities occurred in an election for which he chose not to be a candidate, and where no one prevented him from seeking election. The issue is “Whether a unit owner who was voluntarily not a candidate has standing to challenge an election?”

Comments (1 Comment)

“A disgruntled owner”?…..what court would allow that kind of argumentative crap as “fact”?

How about “An owner filed a petition seeking a new election”.

The pertinant facts could then be provided by the HOA.

The HOA could provide the “facts” proving an impartial 3rd party supervising the counting of votes….

Oh, I forgot…..that doesn’t happen in HOAs. The parties with a direct interest in the outcome get to count the ballots behind closed doors…

Then adding insult to injury, an owner is reduced to having to prove he has standing to to challenge an election where the elected get to make decisions that materialy effect the value of his property.

And of course the “service providers” use the resources of the owners to fight them to challange this three ring circus.

What a joke, but only the “service providers” are laughing.

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DONNA DIMAGGIO BERGER is a Shareholder with the law firm of Becker & Poliakoff. She has represented all types of shared ownership communities throughout Florida over the last two decades and has worked closely with the Legislature to shape the laws that govern private residential communities.

LISA MAGILL is a shareholder in Becker & Poliakoff's statewide Community Association Law practice group. She has been a leader of and active in various organizations dedicated to community association issues, especially outreach and education.

LINDSAY RAPHAEL a partner with Tripp Scott, focuses her practice on condominium and homeowners association matters, as well as property financing and transaction counsel to buyers, sellers, lenders and developers of residential and commercial real estate. She is a regular contributor to Condo Management Magazine.

JEAN WINTERS has focused on representation of both community associations and homeowners living in associations since 2006. She is a partner at Winters & Winters, P.A. The firm has more than 30 years of combined experience in real property law.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Being general in nature, the information provided may not apply to your specific factual or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.